The burden for employers to seek and obtain a suspension of a claimant’s workers’ compensation benefits based upon their voluntary withdrawal from the workforce just became complicated, because the Pennsylvania Supreme Court’s decision in City of Pittsburgh and UPMC Benefit Management Services v. Workers’ Compensation Appeal Board (Robinson), ____ A.3d ____, 18 WAP 2011 (Pa. March 25, 2013), placed its seal of approval on the "totality of the circumstances" test previously espoused by a plurality of the Commonwealth Court.
An employer that seeks a suspension of benefits based upon a claimant’s "voluntary withdrawal" from the workforce must establish job availability either through job referrals or a labor market survey, unless it can prove that the "totality of the circumstances" reveals that such return-to-work efforts would be futile.
If the employer is able to demonstrate that a claimant has voluntarily withdrawn from the workforce, then the burden shifts to the claimant to show he or she either was seeking employment or a work-related injury forced him or her into retirement. If a claimant is unable to meet his or her burden, the employer does not need to prove job availability.
Employers, unfortunately, will be unable to meet the "totality of the circumstances" test by the claimant’s mere receipt of, or application for, a retirement pension, disability pension, Social Security disability benefits or old-age Social Security retirement benefits. A claimant’s pension status combined with the lack of job hunting may also no longer be enough to demonstrate that a claimant voluntarily withdrew from the workforce. The fact a claimant has not looked for a job since his or her work injury may also be insufficient.
The Supreme Court in Robinson chose not to establish a bright-line standard, opting instead to maintain the "totality of the circumstances" test, a heightened burden that an employer may have a difficult time meeting. The following limited issue was focused upon by the Supreme Court: "Did the Commonwealth Court err by holding that, in a petition to suspend compensation benefits based upon an alleged voluntary withdrawal from the workforce, the employer bears the burden of showing by the totality of the circumstances that the claimant has chosen not to return to the workforce?"
Dorothy Robinson sustained a work-related injury in 1997 while working for the city of Pittsburgh as a police officer. After this work injury, the employer placed her in a light-duty office position. On October 15, 2001, the claimant sustained additional work-related injuries. After sustaining these injuries, the claimant did not return to the light-duty position and was still not able to return to her pre-injury position as a police officer. The employer did not offer the claimant any other modified duty position after October 15, 2001.
At the end of 2004, the claimant applied for and received a disability pension because her work-related injury disabled her from performing her pre-injury position as a police officer. On October 30, 2007, the employer obtained a medical opinion that the claimant was able to return to modified-duty work. After forwarding the claimant a notice of ability to return to work, the employer filed a petition to suspend compensation benefits.
The employer alleged the claimant was capable of working but "voluntarily removed herself from the workforce, as she has not looked for or sought employment in the general labor market." The claimant filed an answer denying the averments contained in the suspension petition and claiming that she remained "attached to the workforce and had registered for work with the Pennsylvania Job Center" and she was not working because the employer had eliminated her light-duty position.
The workers’ compensation judge (WCJ) concluded that the claimant had not voluntarily removed herself from the workforce and denied the employer’s suspension petition.
Following the Workers’ Compensation Appeal Board’s (WCAB) affirmation, the employer appealed to the Commonwealth Court of Pennsylvania, which affirmed in an en banc plurality decision. The Commonwealth Court plurality adopted a "totality of the circumstances" standard and, in applying this standard, concluded that the employer did not provide sufficient evidence to show that the claimant had intended to retire.
Thus, because the claimant failed to retire from the workforce, the plurality concluded that the employer was required to show the availability of suitable work within the claimant’s restrictions to sustain its burden, which it did not do.
The Supreme Court in Robinson first dispelled the myth that Southeastern Pennsylvania Transportation Authority v. WCAB (Henderson), 669 A.2d 911 (Pa. 1995), and Republic Steel v. WCAB (Petrisek), 640 A.2d 1266 (Pa. 1994), established a presumption that a claimant who separates from employment and receives a pension has voluntarily withdrawn from the workforce.
In fact, the Robinson court stated, "We do not believe it self-evident, or even logical to presume, from the simple fact that a claimant accepts a pension, a conclusion that the claimant has completely and voluntarily withdrawn from the workforce, or is prohibited from working in any capacity."
The court in Robinson did note that the fact that a claimant elects to receive a pension, regardless of type, is not devoid of evidentiary weight, and may well be probative of a claimant’s desire to leave the workforce; however, such fact only gives rise to a permissive inference that the claimant is retired.
The court cautioned that receipt of a pension is "just one fact of many possible probative facts that must be considered in determining whether the claimant has voluntarily withdrawn from the workforce."
The Robinson court did point out two practical points that can be taken from Henderson: (1) an "unequivocal statement" from the claimant that he had no intention of seeking future employment was not required to show that claimant had removed himself from the workforce; and (2) an employer cannot have the "prohibitive" burden of proving that a claimant has no intention of continuing to work.
Regarding the Commonwealth Court’s "totality of the circumstances" test, the Supreme Court stated this was a conclusion consistent with its holding in Henderson and, as such, the Commonwealth Court in Robinson did not establish a new test.
In fact, the Supreme Court stated that the "totality of the circumstances" test was "simply another way of saying that the fact-finder must evaluate all of the relevant evidence in determining whether a worker has retired from the workforce." In answering the question posed by the court for review, it was determined that it necessarily follows that, when all of the evidence is in, the employer seeking to suspend benefits ultimately bears the burden of proving that the claimant has voluntarily removed him or herself from the workforce.
Taking the entirety of the Supreme Court’s decision into consideration, the burden of proof in a suspension of benefits based upon a voluntary withdrawal from the workforce by a claimant is as follows: (1) the claimant’s acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired, but such an inference is not, on its own, sufficient evidence to establish that the worker has retired; rather, the inference must be considered in the context of the totality of the circumstances; (2) if the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there has been a compensable loss of earning power. If the employer does not present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits and show job availability.
According to the Supreme Court, its holding in Robinson will not impose a prohibitive burden on employers, nor does it subject employers to the unreasonable task of proving the claimant’s state of mind; the employer retains the ability to present evidence to establish a claimant’s retirement status, such as the claimant’s receipt of a pension, the claimant’s own statements relating to voluntary withdrawal from the workforce and the claimant’s efforts or non-efforts to seek employment.
As the voluntary retirement standard is largely dependent upon the views of the fact-finder, the WCJ, it may be useful for the parties to request a bifurcation in order for the WCJ to determine if the employer established a voluntary withdrawal from the workforce by the claimant. If so, then the burden would shift to the claimant to prove he or she did not voluntarily withdraw from the workforce; if not, then the burden stays with the employer to prove job availability.
As it stands, without the presumption that a claimant has voluntarily removed him or herself from the workforce by collecting a pension, whether it be a regular retirement pension or a disability pension, Social Security disability benefits or old-age Social Security retirement benefits, proving that a claimant has voluntarily withdrawn from the workforce has become more dependent upon the views of the specific WCJ adjudicating the case. The employer must face the daunting question as to how it can meet the murky "totality of circumstances" standard. •
Deborah A. Beck is an associate with Margolis Edelstein in its workers’ compensation department. She has been representing employers and workers’ compensationinsurance carriers for more than 16 years.